31. Frontier Dispute Case (Burkina Faso v.

Republic of Mali)
FACTS
This is a petition before the ICJ to resolve a border dispute. Burkina Faso (previously the
Republic of Upper Volta and the Republic of !ali each obtained independence in "#$%
follo&in' decoloni(ation. )ater* the +r'ani(ation of ,frican Unity* co-prised of ,frican .eads
of /tate* &as for-ed. In "#$0* the +r'ani(ation of ,frican Unity -et in Cairo* 1'ypt and
issued a resolution declarin' that all -e-ber /tates of the +r'ani(ation of ,frican Unity
2sole-nly pled'e the-selves to respect the frontiers e3istin' on their achieve-ent of
national independence.4 This resolution codi5ed into la& the a'e6old international principle
of uti possidetis. In "#78* the .ead of /tate of !ali -ade a state-ent indicatin' a lack of
respect for the e3istin' boundaries bet&een !ali and Burkina Faso. !ali and Burkina Faso
later sub-itted to a Cha-ber of the International Court of Justice (ICJ the 9uestion of the
proper de-arcation of boundary lines bet&een the t&o /tates. In considerin' the case* the
ICJ discussed the principle of uti possidetis. Burkina Faso and !ali sub-itted a 9uestion to
the International Court of Justice re'ardin' a border dispute.
!ssue
:oes there e3ist an obli'ation to respect pre6e3istin' international frontiers in the event of a
state succession;
"el#
$es. There e3ists an obli'ation to respect pre6e3istin' international frontiers in the event of
a state succession* &hether or not the rule is e3pressed in the for- of uti possidetis. Thus*
the nu-erous declarations of the intan'ibility of the frontiers at the ti-e of the declaration
of independence of the ,frican states are declaratory. The fact that the principle did not e3ist
&hen the states declared such independence in "#$% does not foreclose its present
application.

,s re'ards the applicable la&* the <arties had stated in the prea-ble to the /pecial
,'ree-ent that the settle-ent of the dispute should be =based in particular on the respect
for the principle of the intan'ibility of frontiers inherited fro- coloni(ation=. Thus* the
Cha-ber could not disre'ard the principle of uti possidetis >uris &hich it declared to be a
5r-ly established principle of international la& &here decoloni(ation is concerned. Its
obvious purpose &as to prevent the independence and stability of ne& /tates bein'
endan'ered by the challen'in' of frontiers subse9uent to the &ithdra&al of the
ad-inisterin' po&er by up'radin' for-er ad-inistrative frontiers to international frontiers.
This principle* therefore* -i'ht represent the &isest course to preserve stability? it -i'ht*
ho&ever* be &ondered that the principle had been able to &ithstand the ne& attitudes to
international la& that had developed* since at 5rst si'ht it con@icted outri'ht &ith the ri'ht
of peoples to self6deter-ination. But as ,frican /tates had selected the principle of uti
possidetis a-on' all other classic principles* the Cha-ber could not challen'e it -erely
because in "#$%* &hen both <arties achieved independence* this principle had not yet been
proclai-ed by the ,frican .eads of /tate and Aovern-ent.
There e3ists an obli'ation to respect pre6e3istin' international frontiers in the event of a
succession. The principle of uti possidetis developed &ith respect to the /panish ,-erican
colonies. In a si-ilar dispute bet&een 1l /alvador and .onduras* the Court described the
principle as follo&sB 2The 'eneral principle oCered the advanta'e of establishin' an absolute
rule that there &as not in la& in the old /panish ,-erica any terra nullius? &hile there -i'ht
e3ist -any re'ions that had never been occupied by the /paniards* the re'ions &ere
reputed to belon'in' in la& to &hichever of the republics succeeded to the /panish province
to &hich these territories attached by virtue of the old Royal ordinances of the /panish
-other country.4
Su%%aries of t&e Decisions
Frontier Dispute
(Burkina Faso v. !ali
By a Special Agreement of 16 September 1983 filed with the Registry of the Court on ! "ctober 1983 the
Republic of Bur#ina $aso and the Republic of %ali had submitted a dispute to the Court concerning the
delimitation of their common frontier& According to Article '' of this Special Agreement the case was to be
decided by a Chamber of the Court constituted according to Article 6() of the Statute& After ha*ing duly
consulted the +arties as to the composition of the Chamber, the Court decided by an order of 3 April 198-
that the Chamber was to be composed of the .udges /achs, Ruda and Bed0aoui as well as .udge ad
hoc /uchaire to sit for Bur#ina $aso and .udge ad hoc Abi1Saab to sit for %ali&
Re9uests for the Indication of <rovisonal !easures*
+rder of "% January "#D$
Before the Chamber had the opportunity to decide the 2uestion, the dispute flared up into war on Christmas
3ay 198- apparently because of a census carried out by Bur#inabe authorities allegedly *iolating %alian
so*ereignty& Both +arties then as#ed the Chamber to indicate pro*isional measures in order to preser*e their
respecti*e rights although, at the same time, they were engaged, since 1944, in a political mediation
endea*our within a regional 5est African group under the Accord de non-agression et d'assistance en
matire de dfense (A&6&A&3&)& "n 3! 3ecember 198-, this group reached a common declaration made by
Bur#ina $aso and %ali containing the terms of a cease1fire but postponing the 2uestion of troop withdrawal
which, according to Bur#ina $aso, should be ordered by the Court& 5ith a *iew to the common declaration
and the negotiation process under the auspices of A&6&A&3&, %ali ob0ected to the re2uest& 'n its "rder of 1!
.anuary 1986, the Chamber stated that the negotiations between the +arties were not incompatible with the
functions of the Court but concluded, with regard to this special item, that an order concerning the
withdrawal of the troops re2uired geographical and strategic e7pertise which the Chamber lac#ed so that the
regulation of this point was left to the A&6&A&3& process& Among the pro*isional measures indicated by the
Chamber there may be mentioned the order to re1establish, as regards the administration of the disputed
areas, the status 2uo ante the armed conflict&
Jud'-ent on the !erits of EE :ece-ber "#D$
Since both +arties had agreed that at the moment of independence there e7isted a definite frontier and that
no modification had ta#en place since 19-9 to 196!, it was the tas# of the Chamber to define this frontier
line in the disputed area&
As regards the applicable law, the +arties had stated in the preamble to the Special Agreement that the
settlement of the dispute should be 8based in particular on the respect for the principle of the intangibility of
frontiers inherited from coloni9ation8& :hus, the Chamber could not disregard the principle of uti possidetis
juris which it declared to be a firmly established principle of international law where decoloni9ation is
concerned& 'ts ob*ious purpose was to pre*ent the independence and stability of new States being
endangered by the challenging of frontiers subse2uent to the withdrawal of the administering power by
upgrading former administrati*e frontiers to international frontiers& :his principle, therefore, might represent
the wisest course to preser*e stability; it might, howe*er, be wondered that the principle had been able to
withstand the new attitudes to international law that had de*eloped, since at first sight it conflicted outright
with the right of peoples to self1determination& But as African States had selected the principle of uti
possidetis among all other classic principles, the Chamber could not challenge it merely because in 196!,
when both +arties achie*ed independence, this principle had not yet been proclaimed by the African <eads
of State and =o*ernment&
:he Chamber then considered whether e2uity could be in*o#ed and decided that only e2uity infra legem was
to be considered; this is shown by the application which the Chamber made of e2uity in delimitating the
frontier on the basis of the rules and principles applicable in the case& :hese considerations of e2uity infra
legem had to come into play in order to guide the Chamber in the e7ercise of its functions of interpreting
and applying the law and the legal titles in*ol*ed, since it had to draw a delimitation line and not only to
indicate the principles on the basis of which the +arties would themsel*es proceed to delimitation&
As a last consideration concerning the applicable law, the Chamber had regard to the $rench colonial
law, droit d'outre-mer, since both +arties had been part of $rench 5est Africa& As the frontier between the
+arties became an international frontier upon independence, $rench law, according to the Chamber, could no
longer play a role in itself but only as one factual element among others, or as e*idence indicati*e of what
has been called the 8colonial heritage8, because international law did not contain any ren*oi to the law of the
coloni9ing States&
:he Chamber had two preliminary 2uestions to e7amine, the first of which concerned the argument of
ac2uiescence, the second the classic problem of interference into the rights of third States not party to the
dispute&
As regards ac2uiescence, Bur#ina $aso had argued that %ali had accepted as binding the solution to the
dispute outlined by the "A> %ediation Commission& 'f this ob0ection were well1founded there would ha*e
been no need for the Chamber to establish the frontier inherited from the colonial period& :he Chamber,
howe*er, disposed of this ob0ection because, on the one hand, both +arties had agreed that the Commission
had not been a 0udicial organ competent to issue legally binding decisions and, on the other hand, the
Commission had ne*er completed its wor#& As to the official declarations of %ali concerning the acceptance
of the binding character of the solution to be found by the Commission, the Chamber stated that those
declarations had not been made during negotiations between the two +arties and thus could at most be
regarded as unilateral acts not intended to create legal obligations& As to the argument that %ali had
ac2uiesced to the application of the principles of delimitation appro*ed by the sub1commission and intended
to ser*e as a basis for the final report of the %ediation Commission, the Chamber found that %ali?s approach
to those principle was of little significance@ Since the Chamber had to decide on the basis of international law
the principles found by the sub1commission had to be applied as such if they were elements of law; if not,
they were of no importance since the Special Agreement did not refer to them&
As regards the problem of possible interference into rights of third States not party to the dispute, %ali had
argued that the Chamber was not competent to fi7 the tripoint %ali16iger1Bur#ina $aso, forming the end1
point of the frontier between the parties, without 6iger?s agreement& Bur#ina $aso in turn considered that
according to the Special Agreement the Chamber had to determine definiti*ely the entire common frontier
and thus to determine the tripoint& :he Chamber disposed of this preliminary ob0ection by finding that its
0urisdiction was not restricted only because of the fact that the disputed area was ad0acent to a third State,
6iger, not party to the proceedings, whose rights, incidentally, were protected under Article -9 of the
Statute&
As to the second aspect of the 2uestion whether the need of safeguarding the interests of a third State
concerned would re2uire the Chamber to refrain from determining the whole course of the frontier line as
re2uested in the Special Agreement, the Chamber found that this would presuppose that those legal
interests of the third State would form the *ery sub0ect1matter of the decision which, howe*er, was not the
case@ 'n the present case, the Chamber had not so much to define a tripoint, as to indicate the ultimate
point of the frontier which ceases to di*ide the territories of Bur#ina $aso and %ali, which implied logically
that the territory of a third State (6iger) lies beyond the end1point of that frontier&
:he Chamber then proceeded to e7amine the abundant e*idence produced by the parties, in particular
legislati*e and regulati*e te7ts and administrati*e documents, the legal force of which was in dispute& As to
the maps submitted, the Chamber departed from the principle that they merely constitute information, and
ne*er territorial titles in themsel*es& :hey were gi*en the effect of 8corroborati*e e*idence endorsing a
conclusion at which the Court has arri*ed by other means unconnected with the maps8& <owe*er, two of the
maps produced appeared to be of special significance, one of which, issued between 19-8 and 196! by the
$rench Institut gographique national (IGN), a neutral body in relation to the parties, must be *iewed as
compelling where other e*idence is lac#ing& Besides this material, also the colonial 8eecti!its8, that is the
conduct of the colonial administrati*e authorities, had to be ta#en into account as proof of the effecti*e
e7ercise of territorial 0urisdiction in the region, although the role of these 8eecti!its8 was rather comple7
and in need of careful e*aluation&
3espite the abundance of e*idence submitted there were some shortcomings and inconsistencies which
rendered the tas# of determining the frontier a rather comple7 one, because the Chamber had to find out
8where the frontier lay in 193 in a region of Africa little #nown at the time by reference to legislati*e and
regulati*e te7ts, not all of which were e*en published and maps which were sometimes of doubtful accuracy
and reliability8& :hus, finally, the Chamber could not be certain that it was deciding upon the basis of full
#nowledge of the facts&
After ha*ing e7amined all e*idence in detail and ha*ing determined what weight to attach to each aspect,
the Chamber determined the frontier in the disputed area beginning with the endpoint of the frontier already
established between the parties& Although not e*en this point had been clearly indicated by the parties, the
Chamber could conclude that there was such a point accepted by both parties& :he Chamber then proceeded
by drawing a series of straight lines in eight different sectors of the disputed area& :he actual delimitation
line was reproduced on a map anne7ed to the 0udgment&
Fo-ination of 13perts
:he final act of the Chamber in this dispute consisted in the order of 9 April 1984 in which it nominated,
according to Article 'A of the Special Agreement, three e7perts to assist the parties in the operation of the
demarcation of the frontier&